C O N F I D E N T I A L SECTION 01 OF 02 THE HAGUE 002869

SIPDIS

DEPARTMENT FOR S/WCI - PROSPER/RICHARD, EUR - STEPHENS,
EUR/SCE - GAUDIOSI/GREGORIAN/MITCHELL, L/EUR - LAHNE, L/AF
- GTAFT. INR/WCAD - SEIDENSTRICKER/MORIN; USUN FOR
ROSTOW/WILLSON

E.O. 12958: DECL: FIVE YEARS AFTER ICTY CLOSURE
TAGS: BK HR KAWC NL PHUM PREL SR ICTY
SUBJECT: ICTY - APPEALS CHAMBER RETURNS LEAD IN DEFENSE
CASE TO MILOSEVIC

REF: A. THE HAGUE 2792


B. THE HAGUE 2736

Classified By: Clifton M. Johnson, Legal Counselor, Reason 1.5(b)-(d).


1. (SBU) Summary: On November 1, the Appeals Chamber of the
International Criminal Tribunal for the former Yugoslavia
(ICTY) upheld the Milosevic trial chamber,s decision to
impose counsel on the accused but reversed the trial
chamber,s decision to give assigned counsel a lead role in
the case. Finding that the trial chamber erred in both the
law and the facts, the appeals chamber ordered a return to
Milosevic of the "lead in presenting his case." The ruling
will place counsel in the stand-by mode it should have been
in to begin with, and is all but certain to lead to
Milsevic,s reengagement with the case. While this will
enhance the legitimacy of the trial, it will also confront
States once again with Milosevic,s politicized defense and
requests that former senior officials testify in the trial.
End summary.


2. (SBU) In a widely-anticipated opinion issued on November
1, the Appeals Chamber, presided over by ICTY president
Theodor Meron, acknowledged the trial chamber,s difficulty
conducting the trial while Milosevic,s health deteriorated.
Describing at length the trial chamber,s many health-related
obstacles in hearing the case, including thirteen suspensions
for a total of 66 days and doctors, prognoses that there was
a "real risk that a life-threatening hypertensive emergency
would develop if (Milosevic) continued to represent himself,"
the Appeals Chamber concluded that "although the question is
close" the trial chamber did not abuse its discretion in
assigning counsel over the objections of the accused.


3. (SBU) The Appeals Chamber "part(ed) ways" with the trial

chamber, however, in its interpretation of the appropriate
relationship between Milosevic and his assigned counsel.
Since imposing counsel intrudes on Milosevic,s right to
represent himself, the opinion states, the intrusion should
be "limited to the minimum extent necessary to protect the
Tribunal,s interest in assuring a reasonably expeditious
trial." The chamber went on to instruct the trial chamber to
devise a scheme that "minimizes the practical impact of the
formal assignment of counsel," so that Milosevic will again
take on the primary role in his defense, as he did before
counsel, Steven Kay and Gillian Higgins, were assigned. The
opinion notes that, "(I)n practice, if all goes well, the
trial should continue much as it did when Milosevic was
healthy. To a lay observer, who will see Milosevic playing
the principal courtroom role at the hearings, the difference
may well be imperceptible." It continued, "If Milosevic,s
health problems resurface with sufficient gravity, however,
the presence of Assigned Counsel will enable the trial to
continue even if Milosevic is temporarily unable to
participate. The precise point at which that reshuffling of
trial roles should occur will be up to the Trial Chamber."


4. (C) Participants in the trial have reacted variously to
this balanced decision, all with a tinge of criticism. Lead
prosecutor Geoffrey Nice is, predictably, upset that the
Appeals Chamber rejected the hard line position (i.e., that
keeping defense counsel in the lead is essential and that
only Milosevic is to blame for the problems in the trial)
adopted by the trial chamber at his urging. Steven Kay told
emboff that he found the decision "weak-kneed," and in the
same breath suggested that his "ethical" obligations require
him to continue to seek withdrawal from the case. See
reftels. His "position has not changed" on withdrawal Kay
says, although he retains "a duty" to continue functioning as
defense counsel. Kay further suggested that he will
reevaluate his position following the resumption of the case
on Tuesday, November 9, when the trial chamber,s
implementation of the appeals ruling will be clearer. (NB:
The trial chamber, according to one Registry source, has
ordered the parties to be prepared to discuss the withdrawal
issue on November 9, after which it is expected to issue an
order dealing with that and any other issues necessary to
getting the trial back on track.)


5. (C) Embassy legal officers have learned that, as expected,
Milosevic is happy with the ruling and expects to begin
retaking the lead of his case next week (though he could use
more time to prepare, it is said). However, a Registry
source says that the "bridge" between Milosevic and Kay "has
been burned" and "will take some time" to repair. For
instance, a group associated with Milosevic has filed a
complaint against Kay before the Dutch bar, apparently
arguing that his disclosure of medical records violated the
confidentiality of those records. (Separately, the group has

SIPDIS
filed a complaint against the Dutch physician, Dr. van
Dijkman, on similar grounds.) The import of the claim
against Kay is unclear, including whether it is something
that Milosevic can and will withdraw if relations with Kay
improve. In any event, Emboffs understand that the Registry
is striving to avoid the loss of Kay and Higgins, who know
the case well and, in its view, are best prepared to
participate as stand-by counsel.


6. (C) Comment: The decision of the Appeals Chamber reorients
the defense case back to where it should have been at the
time counsel was imposed, with Milosevic in the lead but
supported by a stand-by counsel in (the likely) case that his
health again affects his ability to participate in the
proceedings. Whether this decision will get the case back on
track depends on two key wildcards: whether Milosevic takes
the bait and returns to active participation in the trial and
whether the defense counsel continue to pursue their request
to be removed from the case. If Milosevic reengages fully,
including with counsel, Kay and Higgins, reasons for seeking
dismissal will be measurably diminished, and they would be
likely to remain on the case. That in turn will help ensure
a credible and visible defense, albeit one that will extend
the trial well into 2006 and present states with the
politicized defense and senior official witness demands that
are at the heart of Milosevic's approach. End comment.
SOBEL